A note on the Amazon ads: I've chosen to display current events titles in the Amazon box. Unfortunately, Amazon appears to promote a disproportionate number of angry-left books. I have no power over it at this time. Rest assured, I'm still a conservative.

Wednesday, December 10, 2003

More on the Supreme Court stifling political speech: Once again, the link to the decison itself is here. I haven't read the majority opinion, and I'm not going to, because on its face I believe it's bogus. There's no way that stifling criticism of federal candidates in the weeks leading up to election day is a boon for the democratic process.

I've read bits of Justice Anthony Kennedy's and Chief Justice William Rhenquist's dissents, but if you're only going to read some of the 298 page decision, check out Justice Antonin Scalia's dissent. (It starts on page 168.) What follows is some selected quotes from Scalia.

This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography ... tobacco advertising ... dissemination of illegally intercepted communications ... and sexually explicit cable programming ... would smile with favor upon a law that cuts to the heart of what the First Amendment is mant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort. It forbids pre-election criticism of incumbents by corporations, even not-for-profit corporations, by use of their general funds; and forbids national party use of "soft" money to fund "issue ads" that incumbents find so offensive.

...

In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus.

...

What good is the right to print books without a right to buy works from authors? Or the right to publish newspapers without the right to pay deliverymen? The right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise.

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It should be obvious, then, that a law limiting the amount a person can spend to broadcast his political views is a direct restriction on speech. That is no different from a law limiting the amount a newspaper can pay its editorial staff or the amount a charity can pay its leafletters. It is equally clear that a limit on the amount a candidate can raise from any one individual for the purpose of speaking is also a direct limitation on speech. That is no different from a law limiting the amount a publisher can accept from any one shareholder or lender, or the amount a newspaper can charge any one advertiser or customer.

...

The freedom to associate with others for the dissemination of ideas -- not just by singing or speaking in unison, but by pooling financial resources for expressive purposes -- is part of the freedom of speech.

...

While the Government's briefs and arguments before this Court focused on the horrible "appearance of corruption," the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to "crack cocaine," 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), "drive-by shooting[s]," id., at S879 (remarks of Sen. Durbin), and "air pollution" 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). There is good reason to believe that the ending of negative campaign ads was the principal attraction of the legislation.

...

Perhaps voters do detest these 30-second spots -- though I suspect they detest even more hour-long campaign-debate interruptions of their favorite entertainment programming. Evidently, however, these ads do persuade voters, or else they would not be so routinely used by sophisticated politicians of all parties. The point, in any event, is that it is not the proper role of those who govern us to judge which campaign speech has "substance" and "depth" (do you think it might be that which is least damaging to incumbents?) and to abridge the rest.

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All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000... which was a year that "shattered spending and contribution records," ... Even taking this last, larger figure as the benchmark, it means that Americans spent about half as much electing all their Nation's officials, state and federal, as they spent on movie tickets ($7.8 billion); about a fifth as much as they spent on cosmetics and perfume ($18.8 billion); and about a sixth as much as they spent on pork (the nongovernmental sort) ($22.8 billion). ...If our democracy is drowning from this much spending, it cannot swim.

...

The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech.

Scalia also points out that among the corporations banned from running ads during the blackout period are the NAACP, Sierra Club, NRA -- not what the general public imagines when they hear "corporate." Scaila pointed out that if you extended the same restrictions to newspaper editorials, then all papers would have to be sole proprieterships. No Gannett. No Knight-Ridder.

Former independent counsel and solicitor general Kenneth Starr held an online forum over at washingtonpost.com. Starr argued for the losing side in this case.

Olathe, Kan.: From my understanding of this legislation, as an individual, I could purchase an ad to attack a canidate within the 60 day time frame. But if I pool my funds with my wife, I could not. Am I correct?

Kenneth W. Starr: Yes. Section 203 of BCRA, as upheld by the Court today, applies only to corporations and unions, not to individuals. While Microsoft cannot take out a qualifying "electioneering communication," Bill Gates still can.

Bill Gates ... or George Soros.

Not-so equal time: If you're looking for a supportive take on this decision, check out election law expert Rick Hasen's blog.